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Obama's Call for Renewal of Patriot Act Provisions

Jesselyn Radack, September 16, 2009

The following blog entry was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos diary.

I forgave Obama's campaign capitulation on the FISA Amendments Act that granted telecom immunity for warrantless wiretapping. But he promised, if elected, to take a close look at the law and bring his constitutional expertise to bear.

Now, however, the Obama administration has told key members of the Senate Judiciary Committee this week that government secret surveillance methods scheduled to expire in December should be renewed. Assistant Attorney General Ronald Weich told Democrats that they were "willing to consider" additional privacy safeguards, the FISA capitulation was a wholesale give-away of those rights. And the fact that the Obama administration is only "willing to consider," as opposed to "restore," privacy safeguards is disappointing.

The Chairmen of the House and Senate Judiciary Committees scheduled hearings on the reauthorization of expiring provisions of the (un)Patriot(ic) Act. There are 3 provisions of the Patriot Act set to expire in December, which allow investigators to:Monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers,

Monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers,

Obtain business records of national security targets, and

Track "lone wolves" who may be acting by themselves and with no known link to foreign governments or terrorist groups (the government has never actually used this provision, so far as we know).

These provisions may sound uncontroversial at first blush. But the provision on business records gives the government access to citizens' library records.

There needs to be safeguards on a host of issues, for example, the collecting of international communications, and a specific bar on surveillance of protected First Amendment activities like peaceful protests or religious assembly.

Senators Russell Feingold (D-Wis) and Richard Durbin (D-Ill.) are going to introduce a bill that would enhance privacy safeguards, especially with regard to the bastardization of national security letters, which require disclosure of sensitive information by banks, credit card companies, and telephone and Internet service providers. No Judge signs off on these letters. And recipients (loud clearing of my throat occurring on this end) are barred from talking about them. Please support the upcoming Durbin-Feingold bill.

The Durbin-Feingold measure would reform the Patriot Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring that the government has the powers it needs to fight terrorism and collect intelligence. It would, among other things: * first and foremost in my opinion, repeal the telecom amnesty provision in the FISA Amendments Act, leaving it to the courts to determine whether AT&T and other telcoms that complied with the illegal warrantless wiretapping program acted properly under the laws in effect at that time; * stem the abuse of National Security Letters by requiring the government to have "reason to believe" the records sought relate to someone with a connection to terrorism rather than just "relevance," which even the Inspector General said could be used to justify obtaining the records of individuals three or four times removed from a suspect, most of whom would be completely innocent; * reign in "sneak and peek" searches by eliminating the overbroad catch-all provision that allows such searches in any circumstances seriously jeopardizing an investigation--a standard that could be met in virtually any criminal case; and * eliminate the possibility of roving wiretaps that identify neither the person nor the phone to be wiretapped.

In May, President Obama said legal institutions must be updated to deal with the threat of terrorism, but in a way that preserves the rule of law and accountability. The current Patriot Act does not.